Harmful Digital Redux

As we move toward the end of the year, it’s a good time to look at those things that are likely to be on the table still in 2015. One of the items still looming on the legislative agenda is the Harmful Digital Communications Bill (HDC Bill).

We consider the Bill to be a uniquely important piece of legislation by virtue of how it seeks to:

regulate online speech,

establish roles and responsibilities for Internet intermediaries in cyberbullying disputes,

create a general purpose safe harbour for intermediaries, and

introduce innovation to the justice system in light of the need for speedy, Internet-paced redress.

As such, InternetNZ has been pretty vocal on the HDC Bill at all stages of its development. You can see our previous thinking in the submissions, media releases and blog posts we’ve done via these links:

Our stance can be summed up pretty simply. We recognise that there is indeed harm being caused online, and that this can be quite damaging for those that experience it. We also appreciate that online harm is both unique in its magnitude and impacts, and that therefore we need to think as a community about ways to respond to this harm.

We understand the need for new tools to approach the issues that harm in an online environment cause. With that in mind, the aspect of this Bill that we see most positively is the focus it promises from the government on greater education and information for the public – putting resources into equipping people with the tools they need to be confident citizens in the digital age, and to help people deal with situations they have trouble with. The mechanism in the Bill to achieve this is the creation and funding of an “Approved Agency” to work on addressing online harm. This Agency will do important work in educating users of the Internet and in doing real, tangible work to ameliorate the underlying behaviours that are responsible for this harm online. We haven’t met anyone in the policy debate who thinks the Approved Agency is a bad idea – the sooner it’s operating, the better.

Other aspects of the Bill are ones we are less keen on, as we have made clear throughout the policy debate. For example, we are concerned that it proposes the introduction of new criminal offenses to regulate online behaviour; arguably there are already criminal sanctions in New Zealand law that relate to harassment that arguably could readily be applied to these online harm situations. InternetNZ has a policy principle that is relevant here: that technology changes quickly, so laws and policies should focus on activity. Is online harm sufficiently different to “offline” harm that we need to introduce a wholly new criminal regime to address it? We are also concerned that this legislation could be misused, and that it could stifle free expression and communication on the Internet; that the prohibitions on causing “harm” could be used to prevent the rightful dissemination of information that is true and in the public interest.

Those concerns are shared with others, and it remains to be seen where the Government will achieve the votes in Parliament required to progress them. We’ve been clear about our concerns, but we are committed to working constructively with the Government to make the Bill as workable as possible if it is passed. We’ve done that working with officials, talking to Ministers, and most recently by proposing specific improvements to the legislation via a Supplementary Order Paper (SOP) that, if accepted, will help improve it. The amendments include recommendations on issues such as:

Limiting the impact of this HDC Bill on Internet service providers – it is not their role as intermediaries to be content police for their customers.

Inserting a “public interest” defence – we do not want to see this Bill curb the ability of whistleblowers from revealing information that enhances the public interest, even if it is harmful. Such a rule otherwise risks misuse and chilling the ability to share information that the public deserve to know.

Clarifying how this regime should work with personal information - The Bill creates a novel and dangerous requirement for Online Content Hosts to broker personally identifiable information between parties at odds. It seems obvious to us that in a harm situation, the complainant and the author should not have the opportunity to find each other through such a process. We think that the courts are best placed to deal with this.

These proposed amendments are currently being considered by Justice Ministry officials, and we look forward to seeing how the revised legislation looks in the New Year.

Over all, while we agree that online harm does need to be addressed, we have reservations that the Bill is the right way to do so. The Approved Agency is a clear winner and needs to go ahead. On the rest, we are working with the Government to address some of these concerns.

The balance between preventing harm and preserving freedom of expression on the internet is important, and we will continue to keep that in the forefront of our thinking. If the final form of this Bill does not balance these interests appropriately, InternetNZ in the end won’t be able to support it. We look forward to seeing how the debate progresses in 2015.